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T-2102-89
Canadian Wildlife Federation Inc., Gordon Geske and Joseph Dolecki (Applicants)
v.
Minister of the Environment and Saskatchewan Water Corporation (Respondents)
INDEXED AS: CANADIAN WILDLIFE FEDERATION INC. V. CANADA (MINISTER OF THE ENVIRONMENT) (T.D.)
Trial Division, Muldoon J.—Winnipeg, November 29 and 30, 1989.
Federal Court jurisdiction — S. 18 Federal Court Act application — Court questioning jurisdiction over respondent, Saskatchewan Water Corporation — Relief could not be accorded against Corporation — Although 2 of 3 essential requirements for jurisdiction as set out by Supreme Court of Canada in ITO — International Terminal Operators v. Miida Electronics Inc. met, requirement of statutory grant of jurisdi- cation by Parliament not met — Saskatchewan Water Corpo ration established by provincial law — Falling within excep tion carved out of definition 'federal board, commission or other tribunal" in s. 2 Federal Court Act — S.C.C. decisions construing s. 101 Constitution Act, 1867, dwelling on meaning of "laws of Canada" but ignoring meaning of "better" administration thereof and non obstante provision.
Practice — Parties — Standing — Court ex mero motu questioning jurisdiction over Saskatchewan Water Corporation and latter's right to be heard if could not lawfully be implead- ed — Corporation could not be impleaded as respondent as within s. 2 Federal Court Act exception — Order nunc pro tunc, on consent, designating Corporation as intervenor per mitting it to defend federal licence granted to it.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti tution Act, 1982, Item 1) ss. 92(14), 101.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 18. International River Improvements Act, R.S.C., 1985, c. 1-20.
Environmental Assessment and Review Process Guide lines Order, SOR/84-467.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241.
CONSIDERED:
McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654; (1977), 75 D.L.R. (3d) 273; 13 N.R. 181; Quebec North Shore Paper Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R 1054; (1976), 9 N.R. 471.
REFERRED TO:
Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1989] 3 F.C. 309; [1989] 4 W.W.R. 526; (1989), 26 F.T.R. 245 (F.C.T.D.); Canadi- an Wildlife Federation Inc. v. Canada (Minister of the Environment) (1989), 99 N.R. 72 (F.C.A.).
COUNSEL:
Brian A. Crane and Martin W. Mason for applicants.
Brian J. Saunders and Craig J. Henderson for respondent Minister of the Environment. D. E. Gauley and Clifford B. Wheatley for respondent Saskatchewan Water Corporation.
SOLICITORS:
Gowling, Strathy & Henderson, Ottawa, for applicants.
Deputy Attorney General of Canada for respondent Minister of the Environment. Gauley & Co., Saskatoon and Clifford B. Wheatley, Moose Jaw, Saskatchewan, for respondent Saskatchewan Water Corporation.
The following are the reasons for order ren dered in English by
MULDOON J.: This proceeding pursuant to sec tion 18 of the Federal Court Act, R.S.C., 1985, c. F-7 was instituted by the applicants against the Minister of the Environment and the Saskatche- wan Water Corporation as respondents. An earlier case under section 18 between the same parties (T-80-89) [[1989] 3 F.C. 309; [1989] 4 W.W.R. 526; (1989), 26 F.T.R. 245] resulted in the setting aside of a licence under the International River Improvements Act, R.S.C., 1985, c. I-20 to build dams and to carry out other works on the Souris River system in Saskatchewan. That licence was issued by the respondent Minister to the Saskatch-
ewan Water Corporation, and its setting aside was subsequently upheld by a unanimous decision of this Court's Appeal Division (A-228-89) [(1989), 99 N.R. 72].
In the present case at bar, the Court ex mero motu, called into question the Court's jurisdiction over the Saskatchewan Water Corporation and hence that Corporation's right to be heard if it could not be lawfully impleaded.
This Court's jurisdiction was defined generally by the majority judgment of the Supreme Court of Canada in the case of ITO—International Termi nal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241. There at page 766, Mr. Justice McIntyre is reported as distilling from two previous decisions of the Supreme Court, the essential requirements to support the jurisdiction of this Court in a lawsuit in which damages are claimed. The two previous decisions which he cited are McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654; (1977), 75 D.L.R. (3d) 273; 13 N.R. 81; and Quebec North Shore Paper Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R. 1054; (1976), 9 N.R. 471. In both cases the Supreme Court of Canada under took to construe section 101 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti tution Act, 1982, Item 1)]. It runs as follows:
101. The Parliament of Canada may, notwithstanding any thing in this Act, from Time to Time provide for the Constitu tion, Maintenance and Organization of a General Court of Appeal for Canada, and for the Establishment of any addition al Courts for the better Administration of the Laws of Canada.
In the two earlier Supreme Court cases cited, the Court's judgments give scrupulous and exacting attention to the meaning of the expression "the laws of Canada" but are notoriously silent on the meaning of the "better" administration thereof and they completely ignore the expression "not- withstanding anything in this Act". It will be recalled that the power of the latter expression was
ample to work Canada's autonomy from the juris diction of the Judicial Committee of the Privy Council to adjudicate appeals from Canada. It was held that such non obstante provision accorded Parliament the authority to override the constitu tional division of powers particularly in regard to head 14 of section 92.
However the distilled essential requirements of this Court's jurisdiction recited by McIntyre J. in the ITO case, taken in inverse order for present purposes are as follows [at page 766 S.C.R.]:
—The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867.
—There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
The above two criteria are easily met here, for this case turns on the provisions of the International River Improvements Act and the Environmental Assessment and Review Process Guidelines Order, SOR/84-467 (EARP Guideliens Order), both of which are evidently "laws of Canada" for whose better (not merely "due", and certainly not "crip- pled") administration this Court is established.
It might certainly be argued that the better administration of those laws could well counte nance the impleading of the Saskatchewan Water Corporation whose licence was purportedly issued thereunder and which, by the terms of such licence, has agreed to respect and abide by all relevant laws of Canada pertaining to its Souris River basin dams and works.
The remaining requirement runs thus:
—There must be a statutory grant of jurisdiction by the federal Parliament.
However, Parliament, although apparently able to grant such jurisdiction on the strength of the "not- withstanding" provision in section 101, has stopped short of doing so. The relief sought here can be accorded under section 18 of the Federal
Court Act "against any federal board, commission or other tribunal." This expression is defined, in section 2 of the Federal Court Act to mean:
2....
... any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or ... (Emphasis not in original text.)
The Saskatchewan Water Corporation is a body constituted and established by a law of the Prov ince of Saskatchewan and, therefore, relief cannot be accorded against it pursuant to section 18 of the Federal Court Act. It ought not to be here imp- leaded in the capacity of a respondent, because of the exception for such bodies which Parliament carved out of the definition of a "federal board, commission or other tribunal" in section 2 of the Federal Court Act.
In light of the above determination, all the other parties by their respective counsel agreed to treat the Saskatchewan Water Corporation an an intervener to permit it to appear by counsel in the present case so that it may make its submissions in defence of the federal licence which it has been granted. On that basis, the Court made an order nunc pro tunc in order to accommodate the parties and to amend the style of cause to designate the corporation as an intervener. All without costs.
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